In Depth

The state had an affirmative duty to pursue prosecution of a defendant under his right to a speedy trial, the Indiana Court
of Appeals ruled today. The appellate court also disapproved of the state’s blanket policy to not attempt to secure
the attendance of an accused incarcerated person in a foreign jurisdiction until he has finished serving his sentence there.

In Alphonzo
Fisher v. State of Indiana, No. 10A01-1001-CR-21, Alphonzo Fisher challenged the denial of his motion to discharge.
Fisher was charged with Class A felony dealing in cocaine in June 2001 with a pre-trial hearing set for December 2001. At
the time of the hearing, Fisher was in federal custody on an unrelated case.

In 2006, Fisher’s attorney filed notice of availability for prosecution and an objection to the delay of prosecution.
In December 2007, he filed a motion to discharge because his constitutional and statutory speedy trial rights had been violated,
which the trial court denied. The trial court granted Fisher’s motion for transport for the final pre-trial conference
in December 2008, which the state objected to because it would violate the Interstate Agreement on Detainers. Fisher objected
and filed two pro se motions to dismiss in 2009, which were denied.

On interlocutory appeal, the trial court asked whether the state has an affirmative obligation to pursue prosecution under
the circumstances of Fisher’s case. The appellate court said yes, and even the state acknowledged its affirmative duty
to pursue prosecution of Fisher.

But the appellate court also had to examine the four factors under Barker v. Wingo, 407 U.S. 514 (1972), to determine
whether Fisher’s constitutional right to a speedy trial was violated. They found the length of the delay in the case
to be long and took issue with the state’s broad policy of foregoing prosecution of a defendant until the defendant
completes serving time in a foreign jurisdiction. The policy is not an acceptable justification for delaying his trial.

“We certainly cannot approve of a blanket policy to sit back and wait for a defendant to complete his sentence in a
foreign jurisdiction, especially under the facts of this case where the delay in prosecution is substantial,” wrote
Judge Ezra Friedlander. “While there may very well be valid reasons underlying the State’s express policy to delay
prosecution until such time as a defendant finishes serving time in a foreign jurisdiction, the State’s affirmative
duty to diligently, and in good faith, pursue prosecution of defendants is the overriding factor to consider.”

That Fisher asserted his right to a speedy trial also weighs in his favor, noted the judge. They decided not to address the
fourth Barker factor – actual prejudice – in light of the excessive delay, inexcusable explanation for
the delay and Fisher’s assertion of his right to a speedy trial. They reversed the trial court and remanded with instructions
to dismiss the underlying action against Fisher.